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Karaie v Puruno [2021] PGNC 243; N8916 (9 July 2021)

N8916


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 212 OF 2014


BETWEEN:
FRANCIS KARAIE for and on behalf of the Kumetangigi Clan
Plaintiff


AND:
KEVIN PURUNO for and on behalf of the Ipulumai Nombunombu Clan
First Defendant


AND:
VINCENT LINGE sitting as Mendi Provincial Land Magistrate
Second Defendant


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


Ialibu: Kassman, J
2017: 25th May
2021: 9th July


JUDICIAL REVIEW – application for review of decision of provincial land court to award ownership of customary land to the first defendant and members of his clan – grounds of review considered – grounds of review include real or apprehended bias on the part of the Provincial Land Court Magistrate among others – first defendant who was the provincial treasurer funded the expenses for the Magistrate and court party through the provincial government funds – whether such actions of the first defendant can be deemed as reasons sufficient to conclude that there was an apprehension of bias from a reasonable person’s point of view - a reasonable person, given the circumstances and the facts gives rise to a reasonable apprehension of bias - decision of the provincial land court quashed –directions issued for fresh hearing before another magistrate – costs follow event


Cases Cited:


Kekedo –v- Burns Philip (PNG) Ltd and Others [1988-89] PNGLR 122
Mauga Logging Company Pty Ltd v South Pacific Oil Palm Development Pty Ltd (No. 1) [1977] PNGLR 80


Legislation Cited:


Constitution s. 155(3) & (4)
National Court Rules Order 16 Rule 3(2)(a)
National Land Registration Act c. 357 Sections 11, 12 and 13, and 43
Land Registration Act s. 60
Land Disputes Settlement Act Chapter 45


Counsel:


Veronica Yobone, for the Plaintiff
Peter Sapu, for the First Defendants
Jacinta Bamin and Jason Rotep, for the Second and Third Defendants


DECISION


9th July, 2021


  1. KASSMAN J: The plaintiff applied for judicial review of a decision of the Mendi Provincial Land Court made by His Worship Vincent Linge (“the learned magistrate”) on 17 February 2014. This proceeding was filed in the National Court in Madang on 23 April 2014. Leave for judicial review was granted by that court on 11 July 2014. On 9 September 2014, that court ordered the transfer of the court file to Mendi.
  2. At the hearing on 25 May 2017 were the Review Book filed 14 October 2015 [document # 61], the plaintiff’s submission filed 2 February 2016 [document # 62], the first defendant’s submission filed 16 March 2016 [document # 63] and the second and third defendants’ submission filed 19 June 2016 [document # 64].
  3. The Mendi Provincial Land Court matter or file is referenced Appeal No. 2 of 2011, In the matter of a Provincial Land Court Appeal and In the matter of Kimpulu/Kumepugl Land and Between Torombena Puruno for and on behalf of himself and the Ipuluma Nombu Nombu Clan, Appellant and Francis Karaie for and on behalf of himself and the Kumetagigi Clan Respondent. The written decision of the learned magistrate is found at pages 35 to 55 of the Review Book and is an annexure to the plaintiff’s affidavit of Francis Karaie filed 23 April 2014.

Land – Portions 201, 202 and 203 Milinch Kaugel, Fourmil Karimui


  1. The proceedings concern land which is registered as Portions 201, 202 and 203 Milinch Kaugel Fourmil Karimui (“the land”) and that is where the Paunda Hydro Scheme is located in the Southern Highlands Province. The land was compulsorily acquired by the State by publication of a declaration in the National Gazette No. G30 on 25 February 1999. The State has been in occupation of the land since 1980 principally through the PNG Electricity Commission which is now known as PNG Power Ltd. There is no dispute to these facts.

The parties


  1. There are two parties in the proceedings in the Local Land Court, Provincial Land Court and in this court who claim to be the customary owners of the land prior to its acquisition by the State. Both parties are separate clans or grouping of people. Each clan member is related by blood to other members of the clan and they share common local customs and practices. As a grouping, each clan has interests in land acquired by various means over time. Interests in land may include the right to occupy the land, the right to enter the land, the right to use the land ordinarily for gardening, hunting and to use the resources found on the land.
  2. One group is the Kumetangigi Clan of Kume Village, and the clan leader or spokesman is Francis Karaie (hereafter “the Kumetangigi Clan”), the plaintiff. The other group is the Ipulumai Nombunoumbu Clan of Kokopule Village, and the Clan leader or spokesman is Kevin Puruno (hereinafter “the Ipulumai Clan”), the first defendant. Both Kume Village and Kokopule Village are located in the Imbongu District in the Southern Highlands Province.

Jurisdiction – Judicial Review of a decision of a Provincial Land Court


  1. The Land Disputes Settlement Act c. 45 is an Act to provide for the settlement of disputes in relation to interests in customary land and for related purposes. That law provides for the establishment of Local Land Courts and Provincial Land Courts in and for a province and for the practice and procedure of those courts. By section 60 of the Act, “A decision of a Provincial Land Court on an appeal under this Part is final and is not subject to appeal.”
  2. All parties agreed these proceedings were properly before this court as, despite there being no right of appeal available as stated above, the Plaintiff was entitled to bring his grievance with the decision of the Provincial Land Court to this Court by way of judicial review as this Court had the inherent power pursuant to Section 155(3) of the Constitution “to review any exercise of judicial authority”. Further, Section 155(4) of the Constitution provides “Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case”. And Section 166 provides “Subject to this Constitution, the National Court is a court of unlimited jurisdiction”. Furthermore, the Supreme Court and National Court have an inherent constitutional supervisory jurisdiction that cannot be ousted by provision of statutory administrative alternate remedies. In Mauga Logging Company Pty Ltd v South Pacific Oil Palm Development Pty Ltd (No. 1) [1977] PNGLR 80, when discussing and applying Section 155(4) of the Constitution, in the National Court said, “I do not consider that the power to make “such other orders as are necessary to do justice in the circumstances of a particular case” can be confined to matters of procedure only. Giving the words their fair and liberal meaning as required by the Constitution, Sch. 1.5.(2), the provision, in my opinion, extends to jurisdiction also, and enables a court to make an order in the nature of an interlocutory injunction, if the requirements of the section are met, even although no jurisdiction to make the order exits under the principles of a common law or equity. The express reference “to the circumstances of a particular case,” in my opinion, leave no room for a more restrictive construction to be adopted”.

Preliminary matters


  1. On 18 November 2016, this court delivered preliminary rulings on matters raised by the parties. I restate the relevant parts of that ruling to give some background and context to the matters raised in this review.

Was the referral of 24 August 2000 by the National Land Commission to the Local Land Court lawful and did the Local Land Court and Provincial Land Court have jurisdiction to hear and make the various decisions in this matter?


  1. The defendants argued; (i) The State issued Notice of Intention to Acquire the land by gazettal notice G72 on 5 September 1996, (ii) Any party aggrieved or wishing to make representation, including the Kumetangigi Clan, to the Minister had 60 days to lodge such representation pursuant to Section 12 of the National Land Registration Act, (iii) No such representation was made by anyone including the Kumetangigi Clan, (iv) The land was declared as State Land by Declaration published in gazettal notice G30 on 25 February 1999, (v) The claims and representations by the Kumetangigi Clan are time-barred, (vi) Further, the claims and representations by the Kumetangigi Clan should have been lodged with the Minister and Attorney General. The claims and representations by the Kumetangigi Clan were lodged with the National Land Commission and, as such, are void, (vii) Furthermore, claims for settlement payment under the Land Registration Act apply only to land acquired prior to Independence (16 September 1975). The land in issue before this court was acquired by the State on 25 February 1999 which is a date after independence.
  2. Following the declaration that the land was National Land on 25 February 1999, the First Defendants lodged a claim for settlement payment with the National Land Commission. On 8 August 2000, the National Land Commission admitted the First Defendants claim and issued an Order for Settlement Payment for an amount of K950,000 payable to “MESSRS MICHAEL KEREPA, TOROMBENA PURUNO, SAMUEL ANDOIYE spokesmen/landowners who shall cause the sum distributed accordingly to the Customary Land Tenure System practiced locally.” Soon after, the Plaintiffs made representation and claim to the National Land Commission in respect of the land and the award made to the First Defendants. On 24 August 2000, the National Land Commission wrote a letter to the Senior Provincial Magistrate in Mendi referring the “Paunda Hydro Scheme Land” dispute to that court pursuant to Section 43 of the National Land Registration Act for determination “on the question of ownership over the land”.
  3. The First Defendants, supported by the Second and Third Defendants, raised three issues which I will deal with in this sequence:
    1. It was argued the Plaintiffs’ claim to the National Land Commission was time-barred.
    2. They also argued the Plaintiffs’ claim, if any, should have been made to the Minister and not the National Land Commission.
    1. They also argued the National Land Commission erred in law in referring to the Mendi Local Land Court the claim raised by the Plaintiff which contradicts the claim by the First Defendant and the Order for Settlement Payment issued by the National Land Commission of 8 August 2000.

Was the Plaintiffs’ claim to the National Land Commission time-barred?


  1. The defendants argued the State issued Notice of Intention to Acquire the land by gazettal notice G72 on 5 September 1996. Any party aggrieved or wishing to make representation to the Minister, including the Kumetangigi Clan or the Plaintiff, had 60 days to lodge such representation pursuant to Section 12 of the National Land Registration Act. No such representation was made by anyone including the Kumetangigi Clan. The land was declared as State Land by Declaration published in gazettal notice G30 on 25 February 1999. The defendants argued the claims and representations by the Kumetangigi Clan or the Plaintiffs are time-barred.
  2. The defendants also argued there is a distinction between land acquired before and after independence. Reference is made to Division 2 “Land Acquired before Independence Day” which comprises sections 5 to 10 inclusive and Division 3 “Land Acquired on or after Independence Day” which comprises sections 11 to 13 inclusive of the National Land Registration Act c.357.
  3. In my discussion on this argument, I said both Divisions 2 and 3 provide the process to be followed where the Minister gives notice by publication in the national gazette of the State’s intention to declare certain land as National Land. Any person aggrieved by such notice may make representation within 60 days to the Minister. The Minister has the power to declare the land as National Land by publication in the national gazette.
  4. The process is identical for land acquired before and after independence. Further, I note Part VI of the Act provides in section 39 the process for lodgment to the Commission of claims for a settlement payment by persons aggrieved by a declaration in relation to land acquired prior to independence and land acquired after independence.
  5. The only difference I read is in section 10(1) which deals with land acquired before independence and which states that the declaration “is not subject to appeal or review and shall not be called in question in any legal proceedings’. Further, section 10(2) states that “A person aggrieved with a declaration ... may make a claim for a settlement payment.” There is no similar provision in Division 3 for land acquired after independence. Despite this, there is no difference as section 39 gives the Commission the power to consider claims for settlement payment in relation to land acquired before independence (a section 9 declaration) and land acquired after independence (a section 13 declaration).
  6. The time bar argument pursuant to section 12 relates to representations by aggrieved persons following the Minister’s publication of notice of intention to declare certain land as National Land. From my perusal of the claim documents by the Plaintiffs, they claimed a settlement payment pursuant to section 39. The Plaintiffs are not making representation in response to the publication of the notice of intention to declare the land as National Land. The time bar issue raised by the defendants is not applicable and is dismissed.

The claim by the Plaintiff should have been lodged with the Minister and not the National Land Commission?


  1. I ruled that my discussion above also addressed this issue. Representation to the Minister is only applicable where a person is aggrieved with the Minister’s publication of notice of intention to declare certain land as National Land. The claim by the Plaintiff was one that was made and considered by the National Land Commission pursuant to section 39. The National Land Commission was the appropriate body which received the Plaintiff’s claim. This issue raised by the Defendants was also dismissed.

Did the National Land Commission err in law in referring to the Mendi Local Land Court the claim raised by the Plaintiff?


  1. The Defendants argued the National Land Commission did not have the power to refer the dispute to the Local Land Court for determination pursuant the Land Disputes Settlement Act c.45 as the power to make such referral only applies to land declared as National Land prior to independence.
  2. On 24 August 2000, the National Land Commission wrote a letter to the Senior Provincial Magistrate in Mendi referring the “Paunda Hydro Scheme Land” dispute to that court pursuant to Section 43 of the National Land Registration Act for determination “on the question of ownership over the land”. That was after the National Land Commission had made the order for settlement payment in favor of the First Defendants and soon after the Plaintiff lodged their claim with the Commission. As discussed above, the claim by the Plaintiff was one that was made and considered by the National Land Commission pursuant to section 39.
  3. As discussed above, Part VI of the Act comprises sections 39 to 46A and is titled “Settlement Payments”. Section 39 provides the process for lodgment to the Commission of claims for a settlement payment by persons aggrieved by a declaration in relation to land acquired prior to independence and land acquired after independence. Where there is more than one claim which are in conflict, Section 43 provides in mandatory terms that the National Land Commission shall “order that the matter of the conflict or inconsistency be dealt with under the Land Disputes Settlement Act as if it were a dispute as to the ownership of an interest in customary land within the meaning of that Act”. Nothing in Part VI particularly in sections 39 and 43 states or provides that those provisions do not apply to land declared as National Land after independence.
  4. The Land Disputes Settlement Act c.45 is an Act to provide for the settlement of disputes in relation to interests in customary land and for related purposes. That law provides for the establishment of Local Land Courts and Provincial Land Courts in and for a province and for the practice and procedure of those courts.
  5. For the reasons stated above, I ruled the National Land Commission did not err in law in referring to the Mendi Local Land Court the claim raised by the Plaintiff.

Judicial Review


  1. In Kekedo –v- Burns Philip (PNG) Ltd and Others [1988-89] PNGLR 122 at 124, the National Court when discussing the principles applicable on an application for judicial review of administrative or quasi judicial decisions or actions said “The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers”.

Plaintiff’s originating summons


  1. In the originating summons filed 1 August 2014, the plaintiff sought “Order’s in the nature of CERTIORARI that the Mendi Provincial Land Court decision made on 17th February, 2014 by presiding Magistrate, Vincent Linge, be recalled before this Honorable Court to be reviewed and quashed,” The plaintiff also sought interlocutory restraining orders. Further, the plaintiff sought “A Declaration that the Local Land Court decision by Magistrate Robert Teko made at Ialibu Southern Highlands Province, on 12th May 2011, be respected by all parties and enforced”.
  2. Furthermore, the plaintiff sought consequential orders that “... the matter be referred back to the Provincial Land Court for rehearing of the Appeal subject to the following prerequisites – (a) The appeal be heard at Mt. Hagen Provincial Land Court by a Senior Land Court Magistrate to be appointed by the Chief Magistrate; (b) All expenses of the rehearing of the appeal be met from the Magisterial Services Funds not from funds sourced by parties to these proceeding or then their supporters and or companies associated with the parties to these proceedings.”

Grounds of review


  1. The Statement filed on 23 April 2014 pursuant to Order 16 Rule 3(2)(a) of the National Court Rules starts with a well-structured description of the background including succinct summaries of the proceedings in the Local Land Court and the Provincial Land Court, each on two separate occasions. I restate most of the Statement filed 23 April 2014 for clarity before stating and addressing the plaintiff’s grounds of review.

First Local Land Court and Provincial Land Court decisions


  1. The first proceeding between the plaintiff and the first defendant was filed and conducted in the Local Land Court in Mendi and concluded with a decision of Magistrate His Worship Mr Brian Pebo on 7 February 2001 in favor of the First Defendant.
  2. At paragraph 8 of the Statement, the plaintiff says: “8. On 7th February 2001 the Local Land Magistrate His Worship Mr Brian Pebo awarded the subject land to the first Defendant and his clansmen on the basis of adverse possession principle pursuant to Section 67(1) of the LDSA. His Worship Mr Pebo determined the boundary as follows:

“The boundary of the disputed land being the natural boundary from the junction of Nepolo creek and Kaugel river, following the right banks of Nepolo creek upstream to the foot of Londola hill, and turns right following a straight line across to the foot of Londola hill, and at the source of Ligimelgame stream, hence following the stream downstream to its junction with Pauanda river, hence turns right following the right bank of Pauanda river downstream (passed the inlet, portion 203) to its junction with Kaugel river, hence turns right following the right bank of Kaugel River downstream to its junction with Nepolo creek, the point of Commencement”.


  1. The decision of the His Worship Mr Brian Pebo of 7 February 2001 was quashed by the Provincial Land Court in Mendi by then Senior Magistrate His Worship Lawrence Kangwia on 1 October 2020. Justice Lawrence Kangwia is now a judge of the Supreme and National Courts of Justice.
  2. At paragraphs 9 and 10 of the Statement, the plaintiff says:

9. The Plaintiff appealed against the decision in the Mendi PLC. On 1st October 2010, the Mendi PLC quashed the decision of His Worship Mr Pebo and remitted the matter to the Ialibu LLC for rehearing.

10. The PLCE further held that the LLC presided by Mr Pebo was not properly constituted as mandatorily required by Sections 23(1)(a) and 36(1) of the LDSA. The PLC concluded that Mr Pebo’s decision fell short to be a valid Court decision; rather it was merely a Magistrate’s decision. The Court then, amongst others, issued the following specific directions to the LLC:-

(1) “The Local Land Magistrate at Ialibu Court House is directed to take carriage of this dispute commencing December 2010.
(2) The Local Land Magistrate shall appoint two (2) Land Mediators to sit on the Local Land Court panel. Where no Land Mediators are available, the Local Land Magistrate shall appoint two (2) ad-hoc Mediators instead.
(3) The appointment of the Land Mediators or ad-hoc mediators shall be made through consultation with the disputing parties.
(4) The Local Land Court shall then consult with the parties on how to conduct the hearing.
(5) The Local Land Court may rely on the evidence collected by the previous Local Land Magistrate and come up with its findings instead of calling fresh evidence. The consent of the parties shall be obtained to do this.
(6) The Local Land Court may call fresh evidence on its own motion. To determine custom prevailing in the area independent witnesses may be called and examined.
(7) Site visit may be made to see improvements and landmarks only as boundary is not in issue.
(8) The Local Land Court shall take into account the following issues:-
  1. There was no action taken in the National Court following the decision of the Mendi Provincial Land Court of 1 October 2010 to review that decision.

Second Local Land Court and Provincial Land Court decisions


  1. The second proceeding between the plaintiff and the first defendant was filed and conducted in the Local Land Court in Ialibu and was concluded with a decision of Magistrate His Worship Mr Robert Teko on 12 May 2011 in favor of the Plaintiff.
  2. The First Defendant then filed an appeal from the decision His Worship Mr Robert Teko of 12 May 2011 to the Provincial Land Court. The appeal was dealt with by Senior Magistrate His Worship Mr Vincent Linge and Assessors Namba Kapale and Tiye Amba. On 17 February 2014, the Provincial Land Court quashed the decision of His Worship Robert Teko of 12 May 2011.
  3. At paragraphs 11, 12 and 13 of the Statement, the plaintiff says:

“11. On 12th May 2011 the Ialibu LLC awarded the said land to the Plaintiff on the basis of custom and occupation pursuant to Section 68 (1) of the LDSA. The LLC, amongst others, determined the boundary as follows”:-


“The boundary of the disputed land being the natural boundary from the junction of Nepoglo River and Kaugel River following the right bank of Nepolgo river upstream to the foot of Gondogla Hill hence turns right following a straight line across to the foot of Gondogal Hill, and then at the source of Lgimegame stream, hence following the stream downstream to its junction with Paunda River, hence turns right following the right bank of Paunda River downstream (passed inlet, portion 203) to its junction with Kaugel River, hence turns right following the right bank of Kaugel River to its junction with Nepogla River, the point of commencement.”

“12. The First Defendant appealed against the decision of the LLC in the PLC at Mendi in the matter PLC No. 2 of 2011 – Torobena Puruno –vs- Francis Karaie”.


“13. On the 17th February 2014, the PLC confined its decision on the settlement payment in regard to the alienated lands known as “Portions 201, 202 and 203 Milinch Hagen Fourmil Karimui” within Kumepugl. The PLC amongst others, made the following declarations”:-

(1) “Appeal upheld;
(2) The determination by Ialibu Local Land Court dated 12/5/2011 be quashed in its entirety;
(3) Ipulumai Nombunombu clan were vested with ownership right or interest prior to acquisition by the State in 1981;
(4) Kumetangigi clan were vested with the usage and possessory interest prior to acquisition by the State in 1981;
(5) Both parties are considered entitled to settlement payments in compensation for the loss of their respective interests and rights over Kumipulu/Kumepugl land;
(6) Ipulumai Nombunombu clan who were vested with ownership right or interest may progress their claim for settlement payment through the National Lands Commission.
(7) Upon payment of the settlement payment, Ipulumai Nombunombu clan shall pay forty percent (40%) of the payment to the Kumetangigi clan in compensation for the loss of their possessory and usage rights over the land, leaving the balance of the Sixty percent (60%) to be retained by Ipulumai Nombunombu clan.
(8) Subsequent payments after the parties have been paid their respective shares, be only payable to Ipulumai Nombunombu clan.”
  1. At paragraphs 14 to 19 of the Statement, the plaintiff goes on to say:

“14. The entire proceedings are pursued in good faith for over 14 years now.


  1. The PLC relied on Section 67 (1) of the LDSA and Re Hides Gas (1993) PNGLR 309 relating to the principles of adverse possession.
  2. However, the custom prevailing in the area was not considered by the PLC as required by Sections 50 (2) (e) and 68 (1) of the Act. Also the PLC failed to consider the rebuttal evidence adduced by the Plaintiff pursuant to Section 67 (2) of the Act.
  3. Further the Provincial Land Magistrate, the Second Defendant, has not taken into account the defined boundary of the disputed land and also failed to provide reasons for such.
  4. The Second Defendant also failed to give an opportunity to the Plaintiff to address the Court on the issue of distribution of settlement payment from the State and number of witnesses called in the two lower Courts.
  5. The Second Defendant’s travel and accommodation expenses in the sum of K30,000.00 (cheque#: 793 & serial#: 000793) dated 27th December 2013 was directly authorised or ought to be endorsed or influenced by the First Defendant who was and is the Provincial Treasurer of the Southern Highlands Province. This fact was never disclosed to the Plaintiff nor disclosed in Court by the Defendants for the interest of justice.”

Grounds of review


  1. Under Part D of the Statement, the Plaintiff sets out eight grounds of review which I repeat in full here:

“(i) Error of Law on the Face of Record


  1. The Second Defendant erred in law by not applying Section 67 (2) of the LDSA whereby the Plaintiff adduced sufficient evidence rebutting the adverse possession principle under Section 67 (1) of the Act and Re Hides Gas [1993] PNGLR 309.
  2. The Second Defendant erred in law by not applying the prevailing custom of the Kaupena area on the evidence before him as mandatory required by Sections 50(2)(e) and 68(1) of the LDSA.
  3. The Second Defendant erred in law by not informing himself on a fresh issue of distribution of settlement payment from the State as required by Section 50(2)(d) of the LDSA and mandatory procedures set out under Section 50(3) of the LDSA.
  4. The Second Defendant erred in law by not informing himself on an issue of number of witnesses called by the parties in the two lower Courts as required by Section 50(2)(d) of the LDSA and mandatory procedures set out under Section 50(3) of the LDSA.
  5. The Second Defendant erred in law by insisting on the Ialibu LLC’s strict compliance with Direction No. 5 of the first mendi PLC contrary to Section 35(1)(a) & (d) of the LDSA.
(ii) Ultra-Vires.
  1. The Second Defendant acted ultra-vires his powers by exceeding jurisdiction provided for by the LDSA when he distributed or apportioned the settlement payments (i.e. 60% to the First Defendant and 40% to the Plaintiff) from the State.
  2. The Second Defendant acted ultra-vires his powers by exceeding or refusing to exercise jurisdiction to make a decision for the entire Kumepugl land comprised of Kuwepoi, Kamberindi and Kumepugl as it was pursued by the parties in good faith for over 14 years in accordance with the provisions of the LDSA.

(iii) Denial of Natural Justice
  1. The Second Defendant denied the Plaintiff’s natural justice guaranteed by Section 59(2) of the Constitution by failing to give the Plaintiff an opportunity to be heard on the fresh issue of distribution or apportionment of settlement payments from the State.
  2. The Second Defendant breached the Plaintiff’s natural justice by failing to provide any reasons why he did not take into account the rebuttal evidence adduced by the Plaintiff pursuant to Section 67(2) of the LDSA.
  3. The Second Defendant denied the Plaintiff’s natural justice guaranteed by Section 59(2) of the Constitution by failing to make a decision or provide any reason for refusing to or his silence to make a decision, for the entire Kumepugl land comprised of Kuwepoi, Kamberindi and Kumepugl as it was pursued by the parties in good faith for over 14 years.
  4. The Second Defendant denied the Plaintiff’s natural justice guaranteed by Section 59(2) of the Constitution by failing to allow the Plaintiff to be served with a copy of the First Defendant’s written submissions in order for him to prepare and respond to the First Defendant’s submissions on the appeal grounds.
  5. The Second Defendant, without providing any reasons, refused oral submissions from the Plaintiff and thereby denied the Plaintiff’s natural justice contrary to Section 59(2) of the Constitution.
  6. The Second Defendant denied the Plaintiff’s natural justice guaranteed by Section 59(2) of the Constitution by failing to afford the Plaintiff sufficient time to respond to the Second Defendant’s submission on the appeal grounds.
  7. The Second Defendant denied the Plaintiff’s natural justice guaranteed by Section 59(2) of the Constitution by failing to give an opportunity to the Plaintiff to be heard on the issue of number of witnesses called by the parties and reasons thereof in the two lower courts.

(iv) Wednesbury Principle of Unreasonableness.
  1. The Second Defendant’s failure to provide any reasons why he did not take into account the rebuttal evidence adduced by the Plaintiff pursuant to Section 67(2) of the LDSA was unreasonable according to the Wednesbury Principle.
  2. The Second Defendant’s failure to make a decision for the entire Kumepugl land comprised of Kuwepoi, Kamberindi and Kumepugl as it was pursued by the parties in good faith for over 14 years. Specifically the effect of the said decision, apart from the Portions 201, 202 & 203 which are State owned, is that, no owner was established for the disputed customary land and hence it remains ownerless. Accordingly the decision is absurd, confusing and unreasonable according to the Wednesbury Principle.
  3. The Second Defendant’s consideration and reasoning of the Plaintiff’s and First Defendant’s “intimate relationship” or “maternal cousins” in his decision was absurd, confusing and unreasonable according to the Wednesbury Principle.
  4. The Second Defendant’s decision was principally centred on His Worship Mr Brian Pebo’s findings and reasoning other than the other the LLC presided by His Worship Mr Robert Teko, the subject of the appeal, and therefore is absurd, confusing and unreasonable according to the Wednesbury Principle.
  5. The Second Defendant’s ruling that the LLC presided by His Worship Mr Robert Teko was “lopsided with only two (2) witnesses from the First Defendant’s clan and compelled the LLC to make a decision it made” is rather absurd, confusing and unreasonable according to the Wednesbury Principle because it was solely the parties’ right and choice as to the number of witnesses they called.

(v) Failed to Take into Account Relevant Considerations.
  1. The Second Defendant failed to take into account the defined boundary (as referred to in paragraphs 8 & 10 under Part B- Description above) of the disputed land comprised on Kuwepoi, Kamberindi and Kumepugle as it was pursued by both parties in good faith for over 14 years.
  2. The Second Defendant failed to consider the prevailing custom of the area which is a relevant and mandatory requirement when dealing with interest in customary land: Sections 50(2) (e) and 68(1) of the LDSA.

(vi) Taken into Account Irrelevant Considerations.
  1. The Second Defendant took into account an irrelevant consideration when he considered the “intimate relationship” of the Plaintiff and the First Defendant who were and are mere representatives of their respective clans.
  2. The Second Defendant’s entire decision was tainted with his pre-determined views on the pending settlement payments for the alienated lands rather than properly directing himself on the provisions of the LDSA and relevant considerations based on the evidence before him to do justice to all parties. Accordingly, he directed himself on irrelevant fact or consideration.

(vii) Real or Apprehended Bias.
  1. The First and Second Defendants committed real or apprehended bias because the travel and accommodation expenses in the sum of K30,000.00 (cheque#: 793 & serial#: 000793) dated 27th December 2013 for the Second Defendant to hand down his decision in Mendi was directly authorised or ought to be endorsed or influenced by the First Defendant who was and is the Provincial Treasurer of the Southern Highlands Province. For the interest of Justice this fact was neither disclosed to the Plaintiff nor disclosed in Court by both Defendants.

(viii) Bad Faith or Dishonesty
  1. The non-discloser of the facts pleaded in Ground 24 (real and perceived bias) above also amounts to bad faith or dishonesty on the part of the Defendants and that both Defendants are equally liable for dishonesty or bad faith regardless of the Second Defendant’s indemnity provided by Section 74(1) of the LDSA can not apply in the circumstances”.
  1. I have considered the numerous issues raised by the Plaintiff as repeated above. In summary the plaintiff:
  2. These are all serious issues for this court to consider in the review. However, with respect, I am of the view that the most fundamental issues for this court to consider are the final two grounds of review which raise or allege an apprehension of bias by the PLC.
  3. For completeness, I repeat in full the relevant paragraphs of respective written submissions of the parties on this issue.
  4. At paragraphs 68 to 75 of the plaintiff’s written submissions, the plaintiff said:

“68. In Gawi v Public Services Commission [2014] PGNC 1; N5473 (22 January 2014), His Honour Cannings J succinctly stated the principles of apprehension of bias as follows:

“To establish bias as a ground of judicial review it must be proven that the decision -maker was actually biased or that a reasonable apprehension of bias would arise in the mind of a reasonable person with knowledge of the relevant facts and circumstances (Kwame Okyere Boateng v The State [1990] PNGLR 342, John Mua Nilkare v Ombudsman Commission (1996) SC 498, Sela Gipe v The State [2000] PNGLR 271, Application by Herman Joseph Leahy (2006) SC981).”

  1. In the present case, without the knowledge of the Plaintiff, the Second Defendant’s travel and accommodation expenses in the sum of K30,000.00 (cheque # 793 & serial # 000793) dated 27th December 2013 for the Second Defendant to hand down his decision in Mendi was directly authorised or ought to be endorsed or influenced by the First Defendant who was and is the Provincial Treasurer of the Southern Highlands Province. For the interest of justice this fact was not disclosed to the Plaintiff prior to handling down the decision.
  2. The said sum of K30,000.00 (cheque # 793 & serial # 000793) dated 27th December 2013 was released from the Imbonggu District Services Improvement Program (DSIP) funds by the Imbonggu Joint District Planning & Budget Priority Committee (JDPBPC) headed by the Imbonggu Open Member Hon. Francis Awesa. As adduced in the evidence, Hon. Francis Awesa and the First Defendant are directly related by marriage. That is Hon. Awesa’s biological daughter namely Carol Awesa is married to the First Defendant’s biological son namely Appa (Appex) Puruno, who is the current First Secretary to Hon. Awesa.
  3. It is common knowledge that as the MP of Imbonggu, Hon. Awesa has the direct power and control over how the DSIP funds are allocated and used. Hence by inference, he ought to or have authorized the release of the said funds to cater for the expenses of the Second Defendant with the knowledge of the Plaintiff.
  4. We submit that in the normal scheme of things the funding in relation to Court circuits is or ought to be funded out of the appropriations of the Magisterial Services and not any other. However, the funding received and used in this case is outside of the usual practice and it directly defies logic and common sense. Further it goes to bring disrepute to the national judicial system and seriously undermines justice and fairness. It therefore seriously questions the delivery of justice in this case with absolute neutrality and fairness in the eyes of the ordinary citizens.
  5. In other words, First Defendant’s direct or indirect influence in financing the Second Defendant’s expenses to perform his judicial function directly raises apprehension of bias in the minds of reasonable persons: Gawi v Public Services Commission [2014] PGNC 1; N5473 (22 January 2014).

Ground (viii): Bad Faith or Dishonesty


The non-disclosure of the facts pleaded in Ground 24 (real and perceived bias) above also amounts to bad faith or dishonesty on the part of the Defendants and that both Defendants are equally liable for dishonesty or bad faith regardless of the Second Defendant’s indemnity under Section 74(1) of the LDSA.


  1. In Kamuta v Sode [2006] PGNC 9; N3067 (7 July 2006), His Honour Injia DCJ (as he then was) restated the principles of bad faith, amongst others, in the following terms (at para 36)

“.....In Peter Peipul v Justice Shee & Others, (2002) SC706, Kapi DCJ (as he then was), after referring to Lord Green’s statement in Wednesbury’s case adopted and applied the principles in R v Hillington London Borough Council [1986] UKHL 1; [1986] AC 484 at 518 as follows:


“The ground upon which the courts will review the exercise of an administrative discretion is abuse of power – e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity (for example, breach of natural justice), or unreasonableness in the Wednesbury sense – unreasonableness verging on absurdity ...Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and the fact involves a broad spectrum ranging from the obvious to the debatable to the conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely”. (emphasis added).


  1. As pointed out above the deliberate act by the First and Second Defendant by not informing the Plaintiff in the arrangements of the funding of the Second Defendant’s expenses were done with great secrecy. This clearly amounts to bad faith, ill-will and dishonesty.”
  2. At paragraph 24 of the first defendant’s written submissions, the first defendant said:

“24. The First and Second Defendants did not commit an act of real or apprehended bias relative to the K30,000.00 cheque that came from the Imbonggu District Administration to assist with expediting the decision of the PLC decision. The assistance from the Imbonggu District Administration came at the request of the Clerk of the PLC. That letter from the Clerk of the PLC is referenced as Item # 25 in the Review Book and annexed as Annexure K in the Affidavit of Francis Karaie produced as Item 11(i) in the Review Book.

The Clerk wrote to the Imbonggu District Administrator requesting funding to assist with logistics for the PLC Magistrate to come from Tari into Mendi to hand down the decision and to return to Tari thereafter. The Clerk was in a better position to understand and know of the practical difficulties in securing funding from the Magisterial Services in Port Moresby so in his wisdom, he wrote to the Imbonggu District Administration for funding assistance. There is no evidence to suggest that the Clerk colluded with the First and Second Defendants for that funding assistance from Imbonggu District Administration.


The Paunda Hydro is located within the Imbonggu District and it is an asset not only if importance to that District but also the nation for a public purpose. It was only reasonable that any funding assistance would therefore come from that District Administration outside of the Magisterial Service or the Southern Highlands Provincial Government accounts in the province under the Public Finances (Management) Act. The First Defendant did not raise the payment vouchers or give expenditure approval for the payment. These were done by the Imbonggu District Administration.

At best, the First Defendant’s role was merely rubber-stamping what was already committed and approved by the Imbonggu District Administration. It is an inevitable aspect of his duty as the Provincial Treasurer. He would have signed on the cheque if it came from a different District or for a separate facility located in another District. There is no evidence of influencing the payment by the First Defendant.


The Imbonggu District Administration takes care of the welfare and wellbeing of the population of that District. The facility is located in that District. All parties to the dispute come from that District and it had taken almost fifteen (15) years for resolution of the dispute so what the Imbonggu District Administration did was for the public interest and not calculated to lend support or bias to one particular party.

The First and Second Defendants did not have peculiar and specific knowledge of the funding assistance from initial request, the approvals process and eventual disbursement of the funds. The acts or omissions of the Defendants were either so insufficient or far too remote to deny the Plaintiff justice.


Even when the Plaintiff is alleging bias, the ultimate decision of the PLC does not reflect the alleged bias. The decision of the PLC was really in favour of both parties when taking into consideration the totality of the case itself.


In the circumstances, there was no real or apprehended bias by the Defendants.


  1. At paragraphs 11 of the second and third defendants’ written submissions, the second and third defendants said:

“In this review, the argument raised in support of this is that the arrangements of the funding for the Second Defendants sitting in Mendi and accompanying expenses was done with great secrecy amounting to bad faith, ill-will and dishonesty is rebuttable. We strongly submit against this argument on the basis being that the Clerk of the Mendi Provincial Land Court was the one that made this arrangement; it was not the Second Defendant. The letter in evidence means it was not done secretly but proofs otherwise the extent of the Second Defendants involvement in procuring any funding for the hearing of the appeal in Mendi. There is no evidence from the Plaintiff attesting to whether he had knowledge of this apparent bad faith or dishonesty before or after the decision. To raise it at this review, throws into doubt his position at the time of hearing of the appeal when he made applications to dismiss the appeal on the grounds of incompetency and going ahead with the hearing of the appeal with this knowledge of the funding for the Second Defendant to attend the appeal hearing in Mendi, SHP. This ground of review does not carry any weight at all since the Plaintiff has condoned the action of the Clerk of Court by being a willing participant of the appeal and not raising it at the hearing of the appeal. In the minds of reasonable man sitting at the time of hearing the appeal; this bad faith or dishonesty was not evidence until it is raised in this review and this ground for judicial review is doubtful”.


  1. In the plaintiff’s affidavit of Francis Karaie filed 23 April 2014 (document # 3) found at pages 60 to 254 (inclusive of annexures) of the Review Book, he said soon after delivery of the decision by the PLC, he learnt about the payment of K30,000 for the travel and accommodation costs of the PLC in a cheque payment by the Southern Highlands Provincial Treasury to the Clerk of Court Kapa Dilini. The first defendant was treasurer of the Southern Highlands Provincial Administration at the relevant time.
  2. A copy of the actual cheque No. 000793 issued “Pay cash – Kapa Dilini” for the amount of K30,000 can be found at page 254 of the Review Book. Also annexed to the affidavit of Francis Karaie at pages 252 and 253 of the Review Book is a copy of a letter on Magisterial Service letterhead dated 16 December 2013 signed by Kapa Dilini, Clerk of Court addressed to District Administrator, Imbongu, Southern Highlands Province. In that letter, Kapa Dilini sought funding for logistical support for the PLC.
  3. The letter from Kapa Dilini specifically states:

“Paunda Hydro Land Dispute was a long on going matter for some years, however the matter has come before the Senior Provincial Magistrate for Hela Province, Mr Vincent Linge who was appointed by the Chief Magistrate for Papua New Guinea to clear this long time matter.


Mr Linge from Hela came for the hearing of this Appeal Provincial Land Court in September this year, 2013. He had then adjourned the matter and went back to Tari and informed the two parties that he will come and hand-down the decision after three (3) weeks time. From there up till now Magistrate Linge has never come back for handing-down the decision reasons for LLG Elections in Hela Province and swearing of the Presidents and elected Councilors in Hela Province.

Hela Province is populated area with three Electorates and more than seventeen to twenty LLGs. Tari is the biggest area and we have only one Magistrate basing in Hela Province. However, there is more work load, busy with other administrative duties; the decision over the Land Dispute was over due.

Magistrate Linge could not make himself available for the handing-down of decision due to funds unavailable to cater for his travel.


He has now requested your administration for logistical support to meet any expenses/costings to meet all cost of travel for the site inspection over the disputed Paunda Hydro Land Dispute area that is within your electorate.

We had conversation over the telephone today, 16th December, 2013 at 9:54am and verbally told me that he will come to hand-down the decision. Therefore due to funds unavailable within the Justice Department he has deferred to January 2014.


I have spoken with the parties number of times and have approached me, several attempts calling me in relation to this issue, however the Senior Provincial Magistrate is willing to come anytime this month or next month to hand down the decision but due to funds unavailable, seeking logistical support to financial assist me to come over to hand-down the decision for once and for all.

Following is the break-up.

  1. Senior Magistrate – Mr Vincent Linga – T/A – K9,000.00
  2. Three (3) Security Officers – T/A – K4,000.00
  3. Driver and Clerk of Court – T/A – K4,000.00
  4. Accommodation expenses – K5,000.00
  5. Vehicle Hire – K7,000.00
  6. Ticket (airfares) x 2 ways – K1,000.00

Forwarding for your assistance.


Thank you.
Kapa Dilini
Clerk of Court
Cc: Chief Magistrate”


  1. The relevant facts and circumstances, on this issue, are as follows:
  2. Most critically, Francis Karaie also said in paragraphs 37 and 38 of his affidavit, found at page 71 of the Review Book:

“37. I believe the Second Defendant double dipped in the instant case because in any ordinary or normal situations, financing in relation to Court circuits is funded out of the appropriations of the Magisterial services and not any other.


38. I say that the financing of the Second Defendant’s duty travel out of the Southern Highlands Provincial Government’s appropriations of which the First Defendant is the Provincial Treasurer or an authorizing agent is not only improper but also seriously questions the delivery of justice with absolute neutrality and fairness in the eyes of the ordinary persons.”


  1. I have considered carefully the submissions of the first, second and third defendants. With respect, they have all failed to appreciate the magnitude of the relevant facts and circumstances which I mentioned in summary above. To suggest the first defendant’s part in arranging payment was an action to merely “rubber stamp” the payment processing and issuing of the cheque indicates a serious lack of understanding of the very influential role and serious duty of a provincial treasurer. The provincial treasurer is duty bound to carefully check all referrals for expenditure which must comply with budgetary and financial guidelines. Any departure from compliance can amount to misappropriation of public funds which is serious criminal offence. Furthermore, without the approval of the provincial treasurer, payment processes including the raising of a cheque cannot lawfully proceed. The provincial treasurer plays a significant role in safeguarding the finances of the government.
  2. The Plaintiff’s reaction to the funding of the costs of the PLC are clearly stated in paragraphs 37 and 38 of his affidavit. He states clearly that he seriously questions the delivery of justice. He rightly says, as an ordinary person, he has doubts as to the neutrality and fairness of the actions and decision of the PLC presided over by His Worship Mr Linge.
  3. The defendants also say the plaintiff has failed to adduce any evidence of any action implicating or raising any wrongful action directly by His Worship Mr Linge and they also go further to say the outcome of the decision reached was a fair distribution or sharing of the payment. In other words, the defendants are saying the plaintiff was not left with nothing and in fact has the benefit of a 40% share in the payment. That is no answer to the allegation of an apprehension of bias. The law on this has been addressed in numerous decisions of the Supreme Court and also the National Court.
  4. In Boateng v The State [1990] PNGLR 342, the Supreme Court of Kidu CJ, Amet J and Hinchliffe J heard an appeal from conviction for the crime of rape. The appellant was sentenced to imprisonment with hard labour for five years. A ground of appeal was that the trial judge ought to have disqualified himself from presiding over the trial as it appeared that his Honour’s wife was a friend of the prosecutrix. Counsel for the appellant “argued it was the appearance that justice might have miscarried rather than bias on the part of the learned trial judge that was in issue. What was submitted was that the association of the trial judge’s wife with the prosecutrix during the trial could induce a reasonable person to think that justice could have miscarried in this case. Put another way, justice could have been seen not to be done”. The Supreme Court went on to say, “there is no suggestion of bias on the part of the learned trial judge and none was urged during the hearing. Also there is no question of the propriety of His Honour’s conduct of the trial. It is also not suggested that the trial judge’s wife has the right to attend any court and observe proceedings. But it is also to be observed that her association with parties or witnesses in a case might raise questions if she attends and sits in court or talks outside court with witnesses or parties. Whether or not a judge’s wife actually influences the outcome of the case is important but it is not the point here. The point here is the reaction of a reasonable man or woman knowing the relevant facts that justice might have miscarried because of such association in or in the precincts of the court. Justice requires that there be complete absence of any inference or impression that a judge or his family have, by personal association with parties or witnesses, influenced the outcome of a case. However impeccable a judgment or decision of a judge might be the appearance created by such association in the mind of a reasonable man that justice might not have been done to a party cannot be remedied by denials, however true, that such association had no effect on the outcome of the case”.
  5. In concluding, the Supreme Court said “it is our view that such a person knowing what we know from reading the affidavits...would have a reasonable suspicion that justice had miscarried in this case. ... In order to see that justice is seen to be done, we exercise the power given to this court by s. 155(4) of the Constitution, annul the appeal and quash the conviction and sentence. We order that a new trial be conducted”.
  6. I must also note Mr Rotep, who appeared for the second and third defendants at the hearing of submissions on the substantive review, conceded there was “an apprehension of bias from a reasonable person’s point of view. A reasonable person, given the circumstances the fact the first defendant was the treasurer. It gives rise to a reasonable apprehension of bias.”
  7. I am satisfied that a person knowing about the facts and circumstances of the payment of the costs of travel, accommodation and allowances for His Worship Mr Linge would have a reasonable suspicion that justice has miscarried in this matter. I uphold ground VII of the review and quash the decision of the Mendi Provincial Land Court of 17 February 2014.
  8. I do not need to determine the other grounds of review. I will also order that the appeal proceeding, subject of this review, is referred back to the Mendi Provincial Land Court for rehearing by a magistrate who has had no prior involvement in the matters subject of these proceedings. I also encourage the Chief Magistrate assist with assigning a magistrate to hear the appeal. I also urge the Chief Magistrate make available appropriate funding from lawful sources to assist with the hearing and determination of the appeal.
  9. Ordinarily, costs follow the event, and the Defendants shall pay the Plaintiff’s costs of the review. The First Defendant played a significant role in the process for the payment of the money to the clerk of court, a major factor that influenced the upholding of grounds of review as to apprehension of bias. The First Defendant shall bear one third of those costs and the Third Defendant shall bear two thirds of those costs. The Plaintiff’s costs shall be taxed if not agreed.

Natural and man-made disasters – Southern Highlands Province, 2017 and 2018


  1. The following circumstances have contributed to the delay in the delivery of this decision. At the time of the hearing of the substantive review, the country was engaged in the National General Elections with nominations, voting and counting conducted from about May to December 2017 and for some seats, in the Southern Highlands Province, declarations were made in 2018. In that period, there were no sittings of this court in the Southern Highlands Province on account of constant disruptions to law and order and the safety of people and their free and orderly movement within the province was constantly under threat. Then on 26 February 2018, this province experienced major loss of life, personal injuries to many people and loss and damage to property and infrastructure including roads and bridges following a major earthquake reported to have been 7.5 on the Richter scale with the epicenter located within this province. The building housing my chamber, courtroom and other critical functions of the National Court was severely affected and was declared structurally unsafe and unfit for human occupation. A further three months of disruption was then experienced during which renovations were effected to the adjoining building from which the library was converted and used as my chamber and office for staff of the court reporting service. The court server was relocated to the registry and courtroom 2 was renovated and made fit for use. This court then resumed sittings in courtroom 2 in May and June until it was completely destroyed by fire and looting following delivery of the decision of the National Court in Waigani on 14 June 2018 in the election petition between Joseph Kobol, a candidate who contested the Southern Highlands Regional seat retained by Governor Honourable William Powi, MP. In that event, other major State and provincial offices were destroyed by rioters who invaded the Mendi airport terminal and tarmac in broad daylight and set fire to a dash 8 aircraft operated by the national airline Air Niugini. Fortunately, there was no reported loss of life to passengers and crew although they would have been severely traumatized in this event which was the first of its kind in this country. In the same rampage in Mendi town, rioters looted and burnt completely a private residence and buildings occupied by the District Court and the provincial department of primary industries. These buildings remain to be reconstructed. The National Court and District Court have held sittings on an ad-hoc basis in the District Court in Ialibu in November and December 2018 and in February, May and June 2019. On the directions of the Chief Justice, I left the Southern Highlands Province and took up duties as Senior Resident Judge in Kokopo, East New Britain Province in 2019. In the year 2020, my term expired in early February 2020. This was the period when the covid19 pandemic was at its height throughout the world and had set foot in PNG. I remained in Australia until September when I returned and was sworn in to serve my current term as Judge of the National Court. I have continued to be resident in Kokopo. With the approval of the Chief Justice, I returned to Ialibu to deliver my decision in this matter among others civil matters.
  2. The formal orders of this court are:
    1. The application for judicial review is upheld.
    2. The decision of the Mendi Provincial Land Court of 17 February 2014 in Appeal Proceeding No. 2 of 2011 In the matter of a Provincial Land Court Appeal and In the matter of Kimpulu/Kumepugl Land and Between Torombena Puruno for and on behalf of himself and the Ipuluma Nombu Nombu Clan, Appellant and Francis Karaie for and on behalf of himself and the Kumetagigi Clan Respondent is brought into this court and quashed.
    3. The same appeal proceeding is referred back to the Mendi Provincial Land Court for rehearing by a magistrate who has had no prior involvement in the matters subject of these proceedings.
    4. The Defendants shall pay the Plaintiff’s costs of the review, to be taxed, if not agreed, one third by the First Defendant and two thirds by the Third Defendant.

Judgment accordingly:
____________________________________________________________________
Yobone & Co. Lawyers: Lawyers for the Plaintiff
Daniel Kop Lawyers: Lawyers for the First Defendants
Office of Solicitor General, Mt. Hagen: Lawyers for the Second and Third Defendants


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